Judge to rule on witness in burqa

The right of Muslim women to wear the burqa when giving evidence in court will be put to the test tomorrow in what could become an Australian legal precedent.

District Court judge Shauna Deane will preside over a directions hearing to determine whether a prosecution witness in a fraud case can give evidence before a jury while wearing a niqab, commonly known as a burqa.

The devout Muslim woman has told prosecution lawyers she is reluctant to appear in court without her religious dress, which covers her entire body except her eyes.

Prosecution lawyers brought her request before the court and defence lawyer Mark Trowell raised concerns that jurors would not be able to make a proper assessment of the witness if they could not see her face.

Mr Trowell said jurors would have to hope she had "expressive eyes".

It is understood the right to wear a burqa in court has never been examined by the Australian legal system.

Mr Trowell's client is a director of an Islamic college who has been charged with fraudulently obtaining $1.125 million from the State and Federal governments by inflating the school's enrolment.

WA Criminal Lawyers' Association president Richard Utting said Judge Deane would have to decide whether a jury would be able to properly assess a person whose face could not be seen.

"One of the jury's roles is to assess credibility, and credibility is not just what a person says but how they say it and there is an issue I suppose if you can't see someone's face, it may make the jury's task more difficult," Mr Utting said.

Australian Lawyers Alliance WA president Tom Percy said courts had to take account of cultural considerations when hearing from witnesses.

"Traditionally we've grown up with the concept of people being assessed in the witness box as to their demeanour, which includes being able to see their face, facial expressions and general physical demeanour," Mr Percy said.

"But in some cases we have to pay respect to cultural differences as we do with indigenous people . . . and we accept that in some sexual assault cases evidence (is given) in a remote room with closed-circuit TV.

"These days we need to take a flexible approach. Unless there is some really valid reason why someone whose cultural and religious background requires them to dress differently to us should be required to conform to our own standards, then I think we should pay adequate respect to their cultural mores."

Muslim Women's Support Centre of WA spokeswoman Tamara Bahatti said she was certain the court would come to a correct decision.

"If there is an issue in the courts (about wearing the burqa) then they are obviously the best people to make the decision," Mrs Bahatti said. "It's not going to be a decision based on xenophobic attitudes, it's going to be based on what they see as relevant to their procedures.

"We believe the beauty of living in Australia is that we live in a democratic society which does promote the freedom of religious expression."

Mrs Bahatti said some Muslim women would feel uncomfortable revealing their face to strangers if they had spent the majority of their adult life wearing the burqa in public.

The Perth mother who has found herself embroiled in an Australian test case on the right of Muslim women to wear a burqa when giving evidence in court has spoken about her fears of exposing her face in public.

As national debate raged yesterday over the extent of the rights of Muslim women to choose to dress according to their faith, Tasneem said she did not want to be portrayed as a woman who was obstinately trying to "make a point".

Tasneem, who does not want her surname published, said while she would comply with any order imposed by the court, she would feel stressed, uncomfortable and awkward if forced to remove her niqab while testifying in a fraud trial in the Perth District Court.

A niqab is a form of clothing commonly called a burqa.

"For so many years now it is just a part of me," she said yesterday. "I felt that I am just a witness, I didn't commit a crime and if I did, I would have to face the consequences. But I just felt, why must I be exposed in front of all these men when I am just a witness? If I didn't need to be called that would be better for me."

Tasneem is scheduled to be called as a witness in a fraud case against the director of an Islamic college where she had taught. Prosecutors have told the court that Tasneem is reluctant to appear without wearing her niqab.

But defence counsel Mark Trowell has raised concerns that jurors would not be able to make a proper assessment of Tasneem's evidence if they could not see her face.

District Court Judge Shauna Deane will consider the issue today.

Tasneem said that for nearly 20 years she had chosen not to show her face to any men other than her husband and her closest male relatives. She made it clear that her decision to conceal her face was not a compulsory obligation of her faith, which only required that she wear a hijab covering her hair.

Tasneem also spoke of a common misconception that Muslim women were oppressed by their husbands. She said concealing her face with a niqab was not a "restriction" imposed by her husband, rather a personal choice she had made at age 17.

If the court ordered her to appear without her niqab, she would prefer to do so via a video link-up in a closed room with another woman.

Born in South Africa and moving to Australia seven years ago, Tasneem said she had been told yesterday that if she appeared in an Islamic court she would be required to remove her niqab. But she said this did not alleviate her fears of exposure and discomfort.

Tasneem has been forced to remove her niqab for immigration officials when travelling overseas, and she said she recognised this was necessary. But she said these intrusions on her privacy were performed quickly and with respect.

Tasneem said there were rare occasions when she was targeted in public because of her dress, usually with misinformed remarks.

"If I was having a major problem, I would have maybe considered taking it off but it's not like that," she said.

Judge Shauna Deane is hearing submissions to decide if the woman can testify while wearing the burqa.

Mr Sayed has pleaded not guilty to fraudulently obtaining State and Federal government grants by inflating student numbers at the Muslim Ladies College of Australia in Kenwick.

A trial into the allegations started last week but was aborted on Tuesday after it was revealed the case would run for five weeks, three weeks longer than scheduled, resulting in attendance problems for jurors.

A new date for the trial is expected to be scheduled tomorrow.

Earlier today, prosecutor Mark Ritter told the court that the witness had been wearing the burqa for so long that forcing her to remove it while giving evidence would be more likely to hinder rather than benefit her testimony.

Mr Ritter said that the witness, who has covered her face with a burqa for nearly 20 years, was likely to become extremely nervous if forced to testify without the garment.

"Any giving of evidence when the niqab is removed would have a negative impact rather than a positive one," Mr Ritter said.

Judge Deane this morning heard 1 1/2 hours of submissions from Mr Ritter in support of allowing the woman to give evidence while wearing the niqab, which is commonly referred to as a burqa and covers the entire face except for the eyes.

Mr Trowell, who has raised concerns about the jury's ability to assess the woman's evidence without seeing her face, is now making submissions to the court.

Judge Deane said she did not expect her decision to set a precedent for similar issues in other cases, which would each have to be decided on an individual basis.

The devout Muslim woman has told prosecution lawyers she is reluctant to appear in court without her religious dress, which covers her entire body except her eyes.

Mr Trowell has previously raised concerns that jurors would not be able to make a proper assessment of the witness if they could not see her face.

Mr Trowell said jurors would have to hope she had "expressive eyes".

The woman, Tasneem, who does not want her surname published, said that while she would comply with any order imposed by the court, she would feel stressed, uncomfortable and awkward if forced to remove her niqab while testifying in the fraud trial.

"For so many years now it is just a part of me," she said yesterday. "I felt that I am just a witness, I didn't commit a crime and if I did, I would have to face the consequences. But I just felt, why must I be exposed in front of all these men when I am just a witness? If I didn't need to be called that would be better for me."

AUSTRALIA – The Perth mother who has found herself embroiled in an Australian test case on the right of Muslim women to wear a burqa when giving evidence in court has spoken about her fears of exposing her face in public.
As national debate raged yesterday over the extent of the rights of Muslim women to choose to dress according to their faith, Tasneem said she did not want to be portrayed as a woman who was obstinately trying to “make a point”.
Tasneem, who does not want her surname published, said while she would comply with any order imposed by the court, she would feel stressed, uncomfortable and awkward if forced to remove her niqab while testifying in a fraud trial in the Perth District Court.
A niqab is a form of clothing commonly called a burqa.
“For so many years now it is just a part of me,” she said yesterday. “I felt that I am just a witness, I didn’t commit a crime and if I did, I would have to face the consequences. But I just felt, why must I be exposed in front of all these men when I am just a witness? If I didn’t need to be called that would be better for me.”
Tasneem is scheduled to be called as a witness in a fraud case against the director of an Islamic college where she had taught. Prosecutors have told the court that Tasneem is reluctant to appear without wearing her niqab.
But defence counsel Mark Trowell has raised concerns that jurors would not be able to make a proper assessment of Tasneem’s evidence if they could not see her face.
District Court Judge Shauna Deane will consider the issue today.
Tasneem said that for nearly 20 years she had chosen not to show her face to any men other than her husband and her closest male relatives. She made it clear that her decision to conceal her face was not a compulsory obligation of her faith, which only required that she wear a hijab covering her hair.
Tasneem also spoke of a common misconception that Muslim women were oppressed by their husbands. She said concealing her face with a niqab was not a “restriction” imposed by her husband, rather a personal choice she had made at age 17.
If the court ordered her to appear without her niqab, she would prefer to do so via a video link-up in a closed room with another woman.
Born in South Africa and moving to Australia seven years ago, Tasneem said she had been told yesterday that if she appeared in an Islamic court she would be required to remove her niqab. But she said this did not alleviate her fears of exposure and discomfort.
Tasneem has been forced to remove her niqab for immigration officials when travelling overseas, and she said she recognised this was necessary. But she said these intrusions on her privacy were performed quickly and with respect.
Tasneem said there were rare occasions when she was targeted in public because of her dress, usually with misinformed remarks.
“If I was having a major problem, I would have maybe considered taking it off but it’s not like that,” she said.
- The West Australian

Witness anonymity cases are often before courts of law, and for major cases involving long prison sentences, where the jury doesn't see the person testifying at all. Even though I don't believe face-veiling is necessary, I side with our sister in her belief that it's unnecessary for her to show her face. I'd hate to speculate that a big deal is being made simply because she is a Muslim. Anyway, likely just the defense already looking for basis of appeal for his client.

I think this is a non-issue at best. The woman should be free to wear her Islamic dress and be in a burqa while offering her declaration. Only thing is that some women could examine her before her testimony if the identity of the person is same, i.e if she is the same person who is supposed to offer testimony, so that impersonation and fraudulent practises can be avoided. Once confirmed it is the same Muslim woman, she should be allowed to speak under her glorious burka.

Lol, nothing of my reply in that post. Just thought I would do an abuayisha...he often likes to paste and not comment

Re: the muslim sister...I just think the prosecuting lawyer is trying to sow seeds of doubts in the jury's mind ie "maybe she has something to hide, so she hides behind her burqa". After all this dude is trying to get his client off the hook and will probably say anything.

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